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Examining occupational health in the workplace across Western Europe – Keeping your employees safe and protected

Ius Laboris

When dealing with occupational health matters, employers are bound by a large number of obligations and occupational health scenarios often arise where an employer can even be accountable without being culpable. Here is some guidance on possible accountability when an occupational health incident occurs across certain countries within Western Europe. CONTRIBUTOR Ius Laboris.

Recent French case law has tended to clarify the nature of an employer’s obligations in relation to occupational health. To follow are some key points for employers.

In dealing with occupational health matters, employers are bound by many obligations, including:

> Risk assessment and prevention (drawing up the ‘single document’, which is a document that lists all the professional risks in a workplace, safety training, etc.);

> Declaring accidents at work and financing their insurance coverage (the accident at work and occupational illness, or ‘AT-MP’, contribution);

> Health monitoring (occupational medicine) and redeployment of employees who are not fit to work.

The employer’s ‘responsibility’ in the broad sense is historically at the origin of the emergence of social law, and it still constitutes its living heart today. It is revealing that, in current legislation, taking on responsibility for the cost of insurance covering accidents at work is the first element of the ‘social responsibility’ of platforms for self-employed workers (Labour Code, art. L. 7342-2; D. 7342-1 and -2).

Unfortunately, this corporate responsibility is too often confused with a sort of guilt. It is, therefore, worth recalling what should be obvious: just because an employer has obligations towards sick or injured employees or those who are unfit for work does not necessarily mean that the organisation or work should be implicated. An employer can be accountable without being guilty.

Below are two examples.

Incapacity for any employment position
An employee is declared unfit by the occupational physician, who states in his or her opinion that retaining the employee in any employment would be seriously prejudicial to his or her health. This expression is intended to exempt the employer from taking action to try to redeploy the employee, when it appears to the occupational physician that the employee can under no circumstances be redeployed (Labour Code, art. L.1226-2-1 and -12, R. 4624-42).

However, this expression is sometimes interpreted as indicating that the employee’s incapacity was caused by his or her work, in other words, that the employee’s incapacity is of professional origin. This interpretation is, of course, totally erroneous: an incapacity to work with absolutely no possibility for redeployment can perfectly well have its origin in the employee’s specific health problems. This type of statement is completely neutral as to the origin of the incapacity.

As a result:
> The fact that an occupational physician has declared an employee unfit for all positions an organisation does not indicate the existence of a link between the illness and the employee’s work (Cass. civ. 2, 30 November 2017, n° 16-25902)

> The exemption from seeking redeployment recommended by the occupational physician does not imply that the inability to work has a work-related origin (Douai Court of Appeal, 30 November 2018, No. 18/01691)

Death at work
Another example where there is a risk of confusion is illustrated by recent decisions: an employee dies of a heart attack at work. Does this death constitute a workplace accident?  A Court of Appeal held that it did not, with the following reasoning:

‘the administrative investigation had not identified any significant cause of professional stress; on the contrary, the atmosphere is described as very good, the victim being described as a man who is very professionally committed, very balanced, warm and smiling, not a stressed person; the meeting in which the victim was to participate, which had barely begun, presented no particular difficulty, especially since the results to be presented there were good and there was no reason to consider that the victim could be put, in any way, in difficulty; the victim’s relations with his new superior, who arrived in August, were very constructive and the dialogue very open, the latter’s management being more in line with the victim’s philosophy.’

(CA Versailles, 12 April 2018, n°17/03786).

The Court of Cassation annulled this decision, recalling a principle: an accident that takes place at work is presumed to be an accident at work, unless it is established that the injury has a cause totally unrelated to work (Cass. civ. 2, 11 July 2019, n° 18-19.160).

The Court of Appeal’s reasoning revealed an absence of reference points: a work accident can be recognised to have occurred without establishing that working conditions had deteriorated, and, therefore, without assuming or implying any form of fault on the part of the employer. If there is a need to identify the employer’s liability, that would take place in a different context, that of an action seeking to identify an ‘inexcusable fault’ on the part of the employer (Sec. Ct. soc., art. L. 452-1 et seq.).

There are two lessons to be drawn from this decision:

> Employers must be vigilant about their obligation to report accidents at work and be aware they can formally express reservations about the professional nature of the accident, or the circumstances, if necessary.

> The employer can declare a work accident without that constituting an admission of fault or the existence of poor working conditions.

In Belgium, there are multiple reasons why an employee could be considered (from a medical perspective) unfit or incapable to work. Such a (purely medical) decision is often not linked to specific working conditions, let alone to deteriorating working conditions.

Employers’ legal obligations with respect to the health and safety of workers in Belgium are very extensive. Therefore, it cannot be entirely excluded that a worker would try to argue that his or her medical situation is linked to the employer’s negligent conduct.

The recognition of an incident as a ‘work accident’ in Belgium primarily means that the victim will be compensated by worker’s compensation insurance. This also implies that the employer, in principle, cannot be required to pay out any compensation for damages (as the damages are considered to be covered by the worker’s compensation insurance).

These comments only reflect the civil aspects of work accidents in Belgium. After a serious work accident there is a real risk of criminal prosecution for the employer and/or the directors, managers and/or supervisors for (alleged) breaches of the occupational health and safety regulations.

Therefore, it is quite possible for an employer in Belgium to be criminally convicted for breaches of the Belgian OHS-code but not held liable to pay any compensation for damages to the victim/employee.

To summarise: civil claims for damages arising from work accidents in Belgium are only common when the victim is a third party, whilst the risk of criminal responsibility for the employer is ever present and should not be underestimated.

In Germany, employers are confronted with a wide range of obligations regarding the protection of their employees’ health and safety. In principle, a distinction is made between an accident at work and an occupational disease. The latter is defined by a federal Government ordinance containing the so-called ‘list-diseases’. Accidents at work include all work-related health detriments caused by an accident.

If either condition is met, the employer’s civil liability is excluded by law, except for cases of intent or commuting accidents. Instead, the employee’s losses are covered by statutory accident insurance (premiums paid by employer). The exclusion of liability serves as an instrument to avoid legal disputes (civil claims) between the employer and its employees.

Generally speaking, Italian law provides that in every industry a prevention and protection service must be established; a workers’ representative for safety must be elected; staff must be identified to manage emergency situations and employers should conduct risk assessments. Should a workplace accident occur (i.e. a violent event during work time that results in an injury or physical illness), the employer can be held liable if they have not adopted necessary measures to protect the physical and mental wellbeing of workers.

The Netherlands
In the Netherlands, employers’ legal obligations with respect to the health and safety of workers are very extensive. In case of serious accidents that require hospitalisation (or with a fatal outcome) and/or after accidents which led to permanent injuries, there is a legal obligation for the employer to notify the OHS Inspectorate immediately. The OHS Inspectorate decides whether the accident will be further investigated and may impose financial penalties.

Furthermore, employers are quickly held liable for damages. The fact that the employee may be partly responsible for the occurrence of the accident will not be relevant, unless the damage was caused deliberately or was a result of conscious recklessness by the employee. In practice it is unlikely this will be the case.

The Austrian General Social Security Act (ASVG) requires a local, time-related and causal link between the employment relationship and the accident for it to qualify as an occupational accident.

Determining whether an accident at work or a leisure accident has occurred is of great importance for employees, since statutory accident insurance benefits for accidents at work are considerably more extensive than those for ‘normal’ sick leave. In addition, employees have a longer entitlement to continued remuneration for incapacity to work caused by an accident at work.

If the accident at work was caused by the employer’s intent or gross negligence, the social insurance institution may seek compensation from the employer. However, in such cases, the social security institution has the full burden of asserting and proving the existence of facts which justify the presumption of intent or gross negligence on the employer’s side.

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and help judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, Ius Laboris cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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